What the DOMA Decision Means for Immigration Reform

One of the most dramatic moments in the crafting of the Senate’s immigration-reform legislation came last month, during the markup of the bill in the Judiciary Committee. Senator Patrick Leahy, of Vermont, the chairman of the committee and a longtime champion of marriage equality, was under enormous pressure to propose an amendment to the bill that would allow gay and lesbian Americans with foreign spouses to sponsor their partners for green cards the same way that heterosexual Americans can.

The Republican half of the so-called Gang of Eight senators, who wrote the over-all bill, opposed the amendment. (I wrote about the Gang of Eight for The New Yorker last week, and tell part of this story there.) In fact, Lindsey Graham and Marco Rubio, two of the Republicans in the Gang, made it clear that they would no longer support the bill if the amendment were added. The Democrats in the Gang faced a decision that pitted two of the most significant groups within the Party’s coalition—supporters of gay rights and Latinos—against one another. It was not an easy choice: the Democrats could vote for the amendment, and thus kill immigration reform, or they could vote against the amendment and thus go on record in opposition of equal immigration rights for same-sex couples. “Can you imagine pitting the L.G.B.T. community against the Hispanic community?” an aide to Senator Robert Menendez, a member of the Gang of Eight, told me before the vote. “Are we crazy?”

Instead, Democrats chose a third path: they pressed Leahy not to bring up the amendment for a vote at all. They had two arguments. One was that the amendment would kill immigration reform, a situation that would satisfy neither gay Americans nor Latino voters. But the second, perhaps more important argument, was that the reason same-sex married couples didn’t already have equal rights under federal immigration law was because the Defense of Marriage Act prevented the federal government from recognizing their marriages. Fortuitously, the question of whether DOMA was constitutional happened to be before the Supreme Court at the very moment the immigration bill was being drafted. Democrats argued that Leahy should just wait for the court’s verdict. If DOMA went down, the amendment would be redundant.

“If we do it right, we can portray this as not necessary, because it’s going through the courts,” John McCain told me recently, speaking of the Leahy amendment. “If the Supreme Court throws out DOMA, then those rights are gonna be there. If it upholds DOMA, then you could argue that that part of the legislation, if it was in it, was invalid.”

In the end, Leahy declined to put his amendment up for a vote at the committee level, thus saving the bill, but he recently said he wanted a vote on the amendment before the full Senate. In an interview after the committee markup, he told me, “If the Supreme Court rules the way we hope it will, then that will settle the matter.”

And that’s exactly what happened. After today’s verdict, the issue is moot. Whatever happens to the immigration bill, legally married same-sex couples now have the same immigration rights as straight couples.